When considering mediation to resolve your client’s dispute, consider these points:
1. Are the Parties Really Ready for Settlement?
Mediation works only if the parties really desire to resolve the matter, meet in good faith, and have a reasonable evaluation of the case. If plaintiff’s expectations are not supported by the facts, or defense is looking for a “fire sale,” mediation will be a waste of time and money.
2. Provide the Mediation Statement Early
The first time the person with the purse strings learns about the case cannot be at the mediation. Provide your opponent and the mediator with the mediation brief well in advance to give them time to digest your position and evidence.
A private communication to the mediator about confidential dynamics, (e.g., plaintiff is frightened of trial) can be provided also.
3. Candidly Discuss Costs and Risks of Trial
Compared to prolonged litigation, mediation is usually cost effective. From a plaintiff’s perspective, they can have use of settlement funds now, rather than hope for financial recovery later. Litigation costs can surprise clients, often involving several thousands of dollars. This can be a strong motivation to work toward closure.
4. Find Out What the Other Side Needs to be Ready to Settle
Candidly ask opposing counsel, “Are you and your client at a point where we can have a meaningful discussion?” Who knows, this could even lead to direct negotiations (heaven forbid!), and perhaps even a settlement without a mediator.
If the answer is “no,” find out what is needed to get to that point. The parties could agree to exchange information that will allow each side to evaluate the case.
5. Have the Right Attitude
Hostility, anger, finger pointing and accusations don’t belong in mediation. Diplomacy, salesmanship and patience are the bywords. Parties and their lawyers may be firm, tough and even hard-nosed, but they need to do it politely and diplomatically. The appropriate attitude is to step outside the courtroom dynamic and approach the negotiation as a business process of resolving the dispute successfully.
6. If Mediation Does Not Work, Keep the Door Open
While a case may not settle at mediation, that is not the end of the road, particularly if you have an experienced mediator who follows up with the parties. The mediator will often give his or her views on each side’s case and the pros and cons of settlement versus proceeding further, which can motivate parties to move toward a center point.
About the authors:
Guy Kornblum and Charles Cochran specialize in civil trials, arbitrations, mediations and appeals. They are both certified in Civil Trial Advocacy by the National Board of Trial Advocacy. Kornblum is author of Negotiating and Settling Tort Cases: Reaching the Settlement, and is a member of BASF’s Mediation Services panel.